O v C

This is an application by a mother to set aside what she submits are findings made five years ago by a district judge dealing with Children Act proceedings concerning the party’s two children. At that point, the children were seven and 10 years old, respectively. They are now 12 and 15.

The findings that are sought to be set aside are those made by the district judge in reliance upon a report prepared by Melanie Gill, who was appointed by the Court to carry out an assessment of the children. In her assessment, she stated that the children had suffered emotional and psychological harm as a result of the mother’s parenting and would continue to do so if they returned to her care without the mother receiving significant and specific therapy.

This assessment was accepted by the district judge, who expressed that he found as a fact that Ms Gill was correct.

In the body of her report, Ms Gill said there was extensive evidence that the children were being actively alienated from their father by the mother, and that in order to safeguard their welfare they should move to live with him with a package of therapeutic intervention.

She recommended that the mother should engage in Schema therapy and that until she had engaged with it there should be no unsupervised contact. These recommendations were all accepted by the judge.

The children had been removed from their mother at an interim hearing in mid 2020, following Ms Gill stating she was concerned about the mother’s reaction to her recommendations.

At the final hearing in September 2020 this position was confirmed. Since then, the mother has only had limited contact with the children.

Mr Ageros for the mother submits that the Court should reopen and set aside the findings of the district judge based upon Ms Gill’s assessment. He argues that the manner in which an expert was delegated the task of deciding whether the children had been alienated from a parent goes against what is regarded as acceptable practice now, as set out in the case of Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345.

In particular, the President noted that parental alienation is not a syndrome capable of diagnosis, but a process of manipulation of children perpetrated by one parent against another, to what are termed “alienating behaviours”. Those were a matter of fact to be determined by the Court.

The guidance from the Family Justice Council published in December 2024 makes very much the same point. At paragraph 10 of the guidance it identifies three essential components:-

“In order to make findings of alienation a Court would therefore need to be satisfied that three elements are established before it concludes that alienation behaviours had occurred:

(i)

the child is reluctant, resisting or refusing to engage in a relationship with a parent or carer.

(ii)

The reluctance, resistance or refusal is not consequent on the actions of that parent towards the child, or the other parent, which may therefore be an appropriate justified reaction by the child, or is not caused by any other factor, such as the child alignment, affinity, or attachment.

(iii)

The other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent.”

The burden of proof is on the person who makes the allegation, and the standard of proof is a balance of probabilities.

The guidance also invited that any assessment, any psychological or other assessment of the children or family, should take place after the Court has made primary findings of planning.

Mr Ageros also makes a number of submissions about the guidance and the type of expert that should be appointed if such is considered necessary. Ms Gill is not HCPC regulated and approaches her assessments through a narrow prism of attachment science. She would not be considered a suitable expert to carry out such an assessment now.

Mr Ageros also makes a number of submissions about Ms Gill herself and her suitability to conduct an assessment in the light of comments she has made on social media platforms and otherwise.

In response, Ms Evans, on behalf of the father, submits that the district judge made no specific findings of alienation. Further, such findings that he did make were based upon the lengthy involvement he had with the proceedings, which involved many different hearings, including the fact finding hearing in relation to allegations of domestic abuse made by the mother, and his assessment of both the mother and Father as witnesses, and actions that had been carried out during the course of the proceedings.

In the judgment under scrutiny, he stated that the picture Ms Gill had painted of the mother accorded entirely with how he had seen the mother conduct herself throughout the proceedings, portraying herself as a victim, unable to accept that she had any part to play in the difficulties that had existed.

Ms Evans points out further that the judge had made observations at earlier stages of the proceedings as to the mother’s willingness to promote the relationship between the father and the children. She observed the mother’s allegations about the father. She also observed that the mother’s allegations about the father to the Cafcass officer who prepared the recent safeguarding report appeared to have failed to acknowledge that those allegations had been dealt with long ago and not been found proved.

Ms Evans submits that reopening a finding should be based on new evidence rather than information and an opinion that is not factual. In this case, there is no new factual information. She further says that there are no solid grounds for believing that the previous findings require revisiting. In addition, given the views expressed by the judge, which were based on his own observations and assessment of the mother, they are unlikely to be any different if reconsidered.

The legal principles to be applied for a Court in considering whether to reopen findings of fact have been set out in a number of judgments, but in particular, by Peter Jackson LJ, in Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316, where he said this:

“Where an application is made to reopen findings of fact in a family case, the Court proceeds in three stages. First, it asks whether the applicant has shown there are solid grounds for believing that the previous findings require revisiting. Two, if that hurdle is overcome, it decides how the rehearing is to be conducted. Three, it re-hears the matter and determines the issues. There is no strict rule of issue estoppel in children’s cases, but a decision to allow past findings to be relitigated must be a reasoned one. The considerations identified by Hale J, as she then was, in Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117, provide a useful framework. In addition, the Court will need to be satisfied that the challenged finding has actual or potential legal significance, so it is likely to make a significant legal or practical difference to the arrangements that are to be made for these or other children.”

In the case of Re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, the then President, Sir James Munby, endorsed the formulation of a three-stage approach first identified by Charles J in Birmingham City Council v H & Others [2005] EWHC 2885 (Fam).

The first stage is to identify whether there is any new evidence casting doubt upon the accuracy of the original findings. There must be some real reason, solid grounds for challenge, to believe that the earlier findings require revisiting. Mere speculation and hope are not enough.

Stage one will not be satisfied unless there is some real reason to believe that the earlier findings require revisiting. The test should not be set higher than that. There must be solid grounds for challenge.

In Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326 (Fam), Cobb J, in applying the three-stage approach, held that in the first stage, the test is not so high as that for permission to appeal. What is required is a real reason for believing that the earlier findings require reconsideration.

In the case of Re C, the President of the Family Division made clear that findings of alienation are factual matters for the judge and not diagnosis by an expert. It seems to me that any findings made or not made by the Court which arose before the instruction of Ms Gill are, indeed, factual findings which can be relied upon, as described by the President, albeit, in this case, those findings were not of alienation, but of other behaviour such as allegations of domestic abuse.

However, any findings of alienation purported to have been made by Ms Gill cannot have that status, nor, following that, can any findings that have been made by the judge.

I do not blame him for what he said and did, as this judgment and the decisions that were made as a result of Ms Gill’s report predated the President’s decision and the Family Justice Council Guidance. However, now having had that, we can see that, in fact, the findings of fact that the judge said he was making in paragraphs 50 and 51 of his judgment were based on an uncertain and, indeed, mistaken foundation.

The district judge did not specifically say that he found as a fact that the mother had alienated the children, but he did say that the mother had caused the children harm as a result of her parenting, based on Ms Gill’s ‘findings’.

There is no doubt at all that the harm that Ms Gill put forward arose, in her view, from what she regarded as the mother’s behaviour in alienating the children. She said as much of that in the body of her report. Therefore I do not think there is a material difference between what the judge found in paragraphs 50 and 51 of his judgment, and a finding that the mother had alienated the children based on the opinion and evidence of the expert.

In all those circumstances, the finding that the judge said he made in paragraphs 50 and 51 cannot be regarded as a finding that has proper status today. He had not embarked on a factual investigation of the mother’s specific behaviours including the three necessary elements that had been considered as being required by the Family Justice Council as set out above.

The matters set out at paragraph 10 (i) and (ii) of the Guidance were not determined, nor was (iii), namely that the other parent has engaged in behaviours that are directly or indirectly impacted on the child. Ms Gill carried out an assessment of the mother which included her own attachment and other behaviours, but that does not form a finding of fact about how the mother actually behaved.

Therefore there are no findings with a solid foundation that the mother alienated the children even though the judge expressed it as such, and accordingly no findings to actually set aside.

I would go a step further and say that Ms Gill’s report is based very much on attachment science and her assessment of the parents is through that prism. It makes it very difficult to retain any of what she says as a base for future decision-making. Accordingly that report should be left out of account by anyone going on to carry out a further assessment of the children, which includes any observation the judge made about it. Everyone agrees that it should be Cafcass who should now investigate and prepare a section 7 report for the court.

Nobody is suggesting that the issue of alienating behaviours should be relitigated now. What really matters for these children is for an investigation about the current situation so as to inform future welfare decisions, including, in particular, what sort of relationship that the children can have with their mother in the light of their own best interests, wishes and feelings, and the views and attitudes of the parents. Of course the Cafcass officer may look at previous judgments and factual findings which are separate from those of Ms Gill to the extent that he or she consider it necessary.